Judge
Miller authored the opinion of the Court, in which Presiding
Judge Vásquez concurred and Chief Judge Eckerstrom
concurred in part and dissented in part.

OPINION

MILLER, Judge:

¶1
A jury found Antajuan Carson Jr. guilty of two counts of
second-degree murder and two counts of aggravated assault. He
was sentenced to concurrent terms, the longest of which was
thirteen years. His appeal requires us to determine whether a
defendant asserting a mistaken identity defense may also
obtain a justification instruction. We conclude that although
the defenses are inconsistent, it remains within the province
of the jury to determine the facts, and if those facts could
support justification then the jury must be instructed on it.
Therefore, we affirm as to the aggravated assaults because
there was no evidence supporting justification, reverse the
second-degree murder convictions, as to which the slightest
justification evidence existed, and remand.

Factual
and Procedural Background

¶2
We view the facts in the light most favorable to Carson, the
justification instruction's proponent. State v.
King,225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010).
Two men, J.M. and S.B., were shot and killed, and a third,
B.C., was shot and wounded, outside a party at a residence in
October 2013. Carson was indicted as the lone shooter.

¶3
B.C., the surviving victim who came to the party to deejay,
testified that he had known Carson only from a social media
website and had seen him at a couple of parties. Shortly
after B.C. arrived, Carson told B.C. that he was carrying a
nine-millimeter pistol that shot like a .22-caliber. Multiple
witnesses saw Carson with a black gun at some point during
the night.[1]

¶4An
argument occurred inside the house among four or five young
men. The parties stipulated that there was "animosity or
bad blood" between Carson and J.M. arising out of a
prior dispute between Carson and J.M.'s brother. The men,
including J.M. and S.B., confronted Carson and got into a
shoving match or fistfight. Multiple people saw Carson
display a gun inside the house.

¶5People
began leaving and the confrontation moved outside. As B.C.
left through a side door and came around the side of the
house, he saw Carson on the ground, surrounded by the same
four men including J.M. and S.B. B.C. was not one of the four
men. The men were hitting and kicking Carson. B.C. pulled
S.B., whom he knew, out of the fray and walked him across the
street. B.C. told S.B. that if he wanted to fight Carson, he
should fight him one-on-one rather than "jump[ing]"
him in a group.

¶6
B.C. testified he then had seen the fighting stop, but
yelling and screaming continued. Then a man in the area of
the fight stood up, and B.C. heard a gun cock. Someone said
"He has a gun, " and everyone started running. One
witness testified the man getting jumped had "[p]ull[ed]
out his gun so they could get off him" and then
"[h]e started shooting." The man shot J.M., who
fell. J.M. tried to get back up and run away, but the man
shot him again and he stayed down. B.C. was across the street
when the man looked him in the eyes, pointed the gun at him,
and shot him in the abdomen. [2] Finally, the man shot and killed
S.B. Based on eyewitness interviews and the locations of
shell casings at the scene, the shooter moved his hand or
changed positions from right to left while firing.

¶7
Police officers found the bodies of J.M. and S.B. about one
and a half to two blocks apart, in opposite directions from
the party house. An autopsy later established J.M. had been
shot twice in the back, and S.B. had been shot once in the
side of his chest and once in the bottom of his foot. The
lack of soot or stippling around the entrance wounds on the
decedents indicated either that the shots had been fired from
more than three feet away, or that a heavy piece of fabric
might have caught all of the soot at closer range. There was
no testimony that the victims were shot with the same gun,
but no eyewitnesses reported seeing more than one person
shooting that night either. Officers found ten
nine-millimeter shell casings and one nine-millimeter live
round at the scene. Police never found the murder weapon or
weapons.

¶8
Officers also found a bloody knife near S.B.'s body. The
knife was never tested for DNA or fingerprints. Similarly,
blood on a second knife tucked inside S.B.'s belt was not
tested. A detective explained that the investigation had not
revealed that anyone used a knife during the altercation, and
so testing was not necessary.

¶9
Carson became a person of interest early in the
investigation. Police obtained an arrest warrant for him, and
he was apprehended about ten days later in Detroit, Michigan.
Several eyewitnesses identified him as the shooter, but
several others did not. He did not testify or present
evidence in his case-in-chief.

¶10
Carson unsuccessfully requested a self-defense justification
instruction. Despite the trial court's refusal, in
closing both sides indirectly argued self-defense as it
pertained to the knives found at S.B.'s body, although
Carson's primary contention remained mistaken identity.
He was convicted and sentenced as described above. We have
jurisdiction over his appeal pursuant to A.R.S. §§
13-4031 and 13-4033(A)(1).

Waiver and Standard of Review

¶11
Carson timely requested a self-defense instruction in
writing, filed a written motion in support of that request,
and argued that motion to the trial court during trial while
the jury was absent. In its oral ruling denying the
instruction, the court relied on State v. Gilfillan,196 Ariz. 396, 998 P.2d 1069 (App. 2000), which had not been
cited by the parties. The court explained
"[Gilfillan] specifically holds that given the
defendant denies committing the act with which he is charged,
it follows that he could not argue self-defense. . . . So I
think that given how the defense has presented this case in
that he didn't do it and someone else did it . . . I
think the court legally cannot give a self-defense
instruction."

¶12
The state first contends Carson forfeited his objection
except for fundamental error review because the trial court,
rather than he, cited Gilfillan. It relies on
State v. Henderson,210 Ariz. 561, ¶ 19, 115
P.3d 601, 607 (2005), which stands for the general
proposition that when a defendant fails to object to alleged
trial error fundamental error review applies. The state's
argument that Carson should have objected specifically to the
court's "application of Gilfillan to his
case, " would expand Henderson's reach far
beyond its intended purpose of placing the initial burden at
trial on a party to make an objection. Moreover, Carson
specifically argued it would be "perfectly
reasonable" to argue to the jury, "'He
didn't do it, but if you think he did, the facts support
self-defense here.'" This argument was sufficient to
give the court the opportunity to rule on the issue, which it
did. See State v. Fulminante,193 Ariz. 485, ¶
64, 975 P.2d 75, 93 (1999). We also conclude Carson
complied with Rule 21.3(c), Ariz. R. Crim. P., which provides
that a party must object to the failure to deliver a
particular instruction before the jury retires. The issue is
preserved.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&para;14
Use of physical force against another person is justified to
protect oneself "when and to the extent a reasonable
person would believe that physical force is immediately
necessary to protect himself against the other's use or
attempted use of unlawful physical force, " subject to
certain inapposite exceptions. A.R.S. § 13-404(A).
Justification to use deadly force requires, inter alia, an
unlawful use or attempted use of such force by the victim.
A.R.S. § 13-405(A). As it pertains to this case, deadly
physical force means force ...

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